"Melissa Calusinski was back in a Lake County courtroom Friday as a hearing resumed to determine if her murder conviction in the death of a toddler will be overturned. Five years after the Carpentersville woman was found guilty of fatally injuring the boy at a day care center where she worked, the judge who sentenced her to 31 years in prison agreed to hear what her lawyers say is new evidence that should clear her. Prosecutors dispute the existence of new evidence and have argued against a new trial for Calusinski in the death of 16-month-old Benjamin Kingan, of Deerfield. Calusinski, 29, confessed to slamming Benjamin's head to the ground while working at the Lincolnshire center in 2009. But her attorneys have long contended she was coerced. The crux of the case that has attracted national attention now is whether Benjamin died of a skull fracture caused by Calusinski, as a jury concluded in 2011, or whether he died of a previous head injury, as her attorneys argue. They say the pathologists who conducted the initial autopsy of Benjamin missed evidence that he had a prior injury and say X-rays found in the Lake County coroner's office since Calusinski's conviction support that claim. Calusinski's high-profile defense attorney, Kathleen Zellner, contended Calusinski was disadvantaged at her trial because her lawyers didn't have access to these X-rays. "Garbage in, garbage out. The defense was getting garbage," Zellner said. "At a bare minimum, she has to have a new trial." Prosecutors counter that the X-rays are not new — just a digitally lightened version of X-rays provided before the trial — and that a prior injury, if it did exist, doesn't exclude the possibility that Calusinski caused his death with a new injury. But their discovery led in part to Lake County Coroner Thomas Rudd's decision last year to reclassify Benjamin's death from homicide to undetermined. On Friday, a private software developer testified for Calusinski that the X-rays provided to the defense were virtually useless because of their lack of clarity. This prompted Calusinski's father, Paul, to call during a break in testimony for a federal investigation into what he called a "cover-up" of evidence in the case. But prosecutors pointed out in earlier testimony that they received the same difficult-to-read version of the X-rays as the defense attorneys and had sought help from the coroner's office before the trial in making them more legible. The state also has noted that the defense attorneys had access to the same lightening tool as prosecutors did. Prosecutors also have noted that jurors at Calusinski's trial heard testimony from a defense witness who said he believed the boy died of a previous injury, but those jurors still chose to convict Calusinski......... Among those who are backing the defense's conclusion — that Benjamin died not by Calusinski's hand but by a previous head injury — is Dr. Nancy Jones, former Cook County chief medical examiner, who consulted on the case early on but did not examine the remains, and reviewed the case again at Rudd's request. A new sworn statement by Jones was entered into the record Friday. In her report to Rudd, Jones wrote that she was in "complete agreement" with him that Benjamin had a previous injury that was missed by examiners and that could have re-bled, causing his death. She also stated that Calusinski's video statement to investigators was "entirely inconsistent" with Benjamin's injuries, because she said she held the boy's face away from her when she hit his head on the floor, but the injuries were near the back of his head. Jones resigned as chief medical examiner for Cook County in 2012, amid claims that the office was mismanaged and criticism from employees that bodies were stacking up in the morgue's cooler. She now works on her own as a consulting forensic pathologist.........Lake County Judge Daniel Shanes said he will announce his ruling on Sept. 23."
http://www.chicagotribune.com/news/local/breaking/ct-day-care-murder-hearing-met-20160916-story.html